Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
Published in 2000. Judicature 83 (5): 224-227.

Lee Epstein


Social science and the law.  To many scholars and practitioners alike that phrase conjures up images of the Brandeis brief—filed in Muller v. Oregon (1908) to defend the constitutionality of a maximum-hour work law for women and widely heralded at the first use of social science evidence in court; or Clark’s “doll study”— made a part of the record in Brown v. Board of Education (1954) and cited by the Court as evidence of the negative effect of segregation on black children; or the Baldus data—used by civil rights groups in an effort to show that states apply the death penalty in a racially discriminatory fashion.

This is reasonable interpretation; indeed, it is one that dominates various books on the subject of social science and the law, such as Loh’s Social Research in the Judicial Process (1984), Monahan and Walker’s Social Science in Law (1998), and Rosen’s The Supreme Court and Social Science (1972); but it is not the sole interpretation.  Not only do social scientists (and, increasingly, members of the legal academy) develop systematic evidence—sometimes at the request of attorneys, sometimes not—to advance particular claims, they also collect data to study numerous and diverse features of legal processes.  And it is this use of data that has come to dominate many scholarly contributions to social-scientific journals and university presses.

The “other” use is not new.  Beginning in 1925, Professor Felix Frankfurter, with various collaborators, penned a series of Harvard Law Review articles that included a slew of data on the business and decisions of the U.S. Supreme Court.  Twenty-four years later, the Review began what it now an annual tradition of supplying statistics on the Court’s term.  Political scientists too got into the act early on C. Herman Prirchett, the founder of the modern-day study of law and courts, set the stage when, in 1941, he published an article chock-full of data on dissent patterns among the justices.  Many scholars followed Pritchett’s general lead.  So many, in fact, that today virtually no aspect of law and courts—from studies of the outputs of courts and judges to the views of the public over particular decisions to the success of various litigants, has remained immune from some type of data-analytic treatment.

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